Attorney at Law

Divorce can be both emotionally and financially draining for you and your spouse, regardless of how long you have been married. The divorce process comes with plenty of paperwork and legal processes, which can make what is a difficult decision seem even more overwhelming. However, being familiar with the divorce process and knowing how to properly proceed can help ease some of the stress. Here are some steps to follow after you decide you want a divorce.

1. Find a divorce attorney

Although it might seem strange to consult with a divorce attorney before informing your spouse, it can prove to be immensely beneficial. Your divorce attorney can provide you with constructive advice on how to take the first steps and the best way to break the news to your partner. Moreover, you can have your attorney send a respectful letter to your partner stating that you are filing for divorce and advising him or her that they may want to seek independent legal representation. This can help set the tone for a calm divorce.

2. Breaking the news

After plenty of research and reflection, you have concluded that you want a divorce. The first step is to inform your spouse of your decision. Choose a time that will give both you and your spouse time and space to discuss the matter. Any threats or insults can later be used against you in divorce and child custody proceedings, so do your best to speak calmly and respectfully. Once you know for a fact that you are getting a divorce and your spouse has already been informed, you can tell your children. If the circumstances allow, it is best for you and your spouse to tell them together. By doing so, you show your children that although you and your spouse are separating, you are united in caring for them. Discuss with your attorney any concerns you may have for the safety of yourself or your children, and whether it may be advisable to obtain a temporary restraining order (TRO) or order for protective custody of the children.

3. Organize temporary living arrangements if necessary

Upon filing for divorce, determining where you, your spouse, and your children will live is one of the most urgent issues to address. Living under the same roof with your spouse after you have decided to end the marriage is not always ideal, especially where finances are tight or you are worried about the possibility of domestic violence or child abuse. In situations where the couple has more financial stability, one might choose to move out of the family home into a different apartment or house. One spouse could purchase another home to live in during the divorce process, but it is important to keep in mind that it could still be seen as marital property even if it was acquired towards the end of the divorce.

However, costs and expenses aside, there can be severe legal ramifications to moving out of your home pending your divorce. For example, leaving your home could mean losing your right to occupy and possess the property, leaving you without a place to live if your spouse obtains exclusive possession. Moving out could also mean giving up decision-making power, potentially leading to your spouse making decisions you don't agree with, such as selling valuable items or damaging the property. If you have children and move out, it could be seen as abandoning your parental responsibilities and negatively impact your chances of obtaining custody or visitation rights.

As you can see, there are many factors to take into consideration when deciding on living arrangements during this time. However, regardless of how much you wish to avoid the tension and stress of cohabiting with your spouse in the interim, it is one of the most important things to discuss with your lawyer before you move out of your home—even if only temporarily.

4. Start collecting financial information

As the parties will be required to submit affidavits disclosing various aspects of their finances such as assets, income, and in some states even any anticipated inheritances, having a clear picture of your finances is important, as this information will guide the court in deciding how to distribute assets and debts following the divorce, as well as when making alimony, spousal/child support determinations.

Examples of financial information you should assemble include:

  • Income tax returns (from the past 3 years)
  • Pension plan information
  • Investment account statements
  • Retirement savings account statements 
  • Social security records
  • Employment records
  • Real estate deeds
  • Documentation for wills and trusts
  • Credit card bills of both the spouses and the children

This process can be very time-consuming, so it's best to get the financial information together soon rather than later.

5. Gather evidence in fault divorce cases

There are two main types of divorce in the United States: no-fault and at-fault. Every state offers couples the option of filing a no-fault divorce, which means that there was no specific legal ground or individual at fault that led to the divorce (typically citing “irreconcilable differences” as the reason for the divorce). Conversely, in the case of an at-fault divorce, the party initiating the divorce must provide specific reasons or grounds for the divorce that show that one spouse is at fault for the breakdown of the marriage.

Some of the most common grounds states recognize as supporting an at-fault divorce include:

  • Adultery
  • Physical or mental abuse
  • Habitual drunkenness or Substance abuse
  • Imprisonment of the other spouse for an extended period of time
  • Incurable insanity or permanent psychological disorder
  • Sexual deviancy
  • Refusal to provide financial support despite having the means to do so
  • Impotence or infertility that was not disclosed to, or known by, the other party prior to the marriage (although in some cases this may be grounds for annulment of the marriage—which means the marriage is retroactively deemed to have never taken place).

A petitioner in such cases must provide sufficient proof to the court that the respondent committed the specific fault alleged. For instance, in cases of fault divorce on the grounds of family violence, it may be helpful to provide documentation of criminal convictions or police reports.

6. File the petition

Now that you have all of your affairs in order, it is time to file a divorce petition. The party initiating the divorce (referred to as the “petitioner") will file a petition to the court that must include a statement indicating that a copy has been served on the other spouse (referred to as “the respondent”). 

The petition must include various information and details such as: names and addresses of both parties; the date and location of the marriage; whether it's a no-fault or at-fault divorce; the names, ages, and living arrangements of the children, if any; and the petitioner’s requests regarding alimony, child support, and custody/living arrangements for the children.

Note that a number of states require a separation period before you can finalize a divorce—which can range from months to years—although some of those will allow the parties to waive that period in the case of a no-fault divorce.

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